2013596 (Refugee)

[2025] ARTA 1686

2013596 (Refugee) [2025] ARTA 1686 (30 June 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number:  2013596

Tribunal:General Member B Gogarty

Date:30 June 2025

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

Statement made on 30 June 2025 at 12:29pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – former gang members – organised crime – recognised by tattoo – tried to leave gang – fears harm by both criminal gangs and country authorities – involved in criminal conduct – character exclusion implications – Serious Crime Exclusion – decision under review affirmed

LEGISLATION

Administrative Review Tribunal Act (2024), ss 54 and 105
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 45, 65, 338A, 349, 367A, 369, 499, 500, 501
Migration Regulations 1994 (Cth), r 4.33, Schedule 2
Tribunal Amalgamation Act 2015 (Cth)

CASES

Applicant A v MIEA (1997) 190 CLR 225. 233
ASJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 476
Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107
EQU19 v MICMA [2023] FCA 1182
Frugtniet v ASIC [2019] HCA 16
GWRV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 602
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v SGLB [2004] HCA 32
Minister for Immigration and Multicultural Affairs v Israelian (2001) 206 CLR 323
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173, 179, 185, 186, 191
Prasad v MIEA [1985] FCA 46
Randhawa v MILGEA (1994) 52 FCR 437, 451
Shi v MIRA (2008) 235 CLR 286, 327
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 367
SZTGM v MIBP (2017) 262 CLR 362
SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. The applicant is a Malaysian citizen. On 12 December 2019, while onshore in Australia he applied for a Protection visa (subclass 866) under s 45 of the Migration Act 1958 (Cth) (the Act). The applicant claimed that he would be harmed by both criminal gangs and country authorities given his historic gang membership, as a reasonably foreseeable consequence of being returned to Malaysia (the “original application”).

2. On 1 September 2020 a delegate of the Minister for Home Affairs rejected the original application under s 65 of the Act. The delegate determined that the applicant was not a refugee as defined by s5H of the Act nor that he would face a real risk of significant harm as a necessary or foreseeable consequence of being removed to Malaysia (the “primary decision”).

3. On 3 September 2020 the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the primary decision. As the review was not finalised by 14 October 2024 when the AAT became the Administrative Review Tribunal (the Tribunal), the application for review to the AAT is taken to be an application to the Tribunal.[1]

   [1] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).

4. The applicant appeared before the Tribunal on 25 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages. Quotations in this decision attributed to the applicant are those made by him in English, or by the interpreter on his behalf.  At the hearing the applicant made new claims about his history of offending, participation in and direction of organised criminal activities before he came to Australia.

   Issues for determination

5. The primary issues are whether the applicant faces either a real chance of serious harm, or real risk of significant harm, as a reasonably foreseeable consequence of his being returned to Malaysia.

6. A further, interrelated, issue arises as to whether the Tribunal is satisfied that the applicant has committed serious non-political crimes in Malaysia. This raises a somewhat complex jurisdictional question about the Tribunal’s role in determining whether the applicant may be ineligible for the grant of a visa, pursuant to ss 5H(2) and 36(2C) of the Act, where admission of such crimes was made for the first time at the hearing.  Previous Tribunals invested with confined subject matter jurisdiction over protection reviews were not permitted to make findings in circumstances such as these.[2] However, this Tribunal operates on a new legislative footing, with an expanded and unified subject matter jurisdiction. As will be set out in detail, the new statutory structure and unified jurisdiction of this Tribunal raises doubt about whether case law applicable to more confined Tribunals applies to the present circumstances so as to preclude the Tribunal from making findings about whether the applicant has committed serious non-political crimes in the context of his protection application.

   [2] Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107.

7. While it is not the Tribunal’s role to conclusively determine the meaning of the law under this new framework, it must nonetheless apply the law to the facts and evidence before it, and in doing so, exercise its review function in a manner which observes the statutory objects and purposes of the legislation conferring its jurisdiction. In the absence of clear judicial authority relevant to the application of the present statutory framework the Tribunal has sought to exercise its fact-finding function in relation to new evidence of serious non-political offending, in a manner which reflects a purposive and textual application of relevant law. Its reasoning is set out below.

8. Having reviewed all the claims made and evidence presented, the Tribunal affirms the decision under review for the reasons set out below.

   Background

9. The applicant, who the Tribunal accepts is a national of Malaysia, identifies himself as a Malaysian Indian of the Hindu faith. He told the Tribunal that he was born in Kuala Lumpur to Malaysian citizens. He has [siblings]. At the time of the hearing the applicant said he had never been married.

10. Department records show that the applicant applied for a subclass UD-601 tourist visa to Australia on 26 August 2019. He departed Malaysia [and arrived in Australia in] September 2019.

    Original application

11. In the original application for protection made on 12 December 2019 (“original application”), the applicant made the following claims:

    “Previously I was attached with a group of gang [Gang name 1] which is involve in gangsterism. Since I faced a lot of problems with that I force myself to out from that gang. But the gang members and the leader don't let me to out from it. Finally I manage to run away from them. The gang leader keep on searching for me till now even though I have came over to Australia.
    …
    Since the day I join [Gang name 1] I was forced to have a tattoo in my body. Currently Malaysian police is arresting all those with the tattoo in their body with the logo of [Gang name 1]. Even though I'm no more in that gang I might be arrested by the police force. Plus the leader of the gang still finding for me to join them back as I know all the secrets about their gang.
    …
    I can't seek any help from anyone in my country as my name is wanted as I'm involve in the gang. None of my friends also willing to help me as they thinks that I'm involving illegal works.
    …
    I tried to move to another state to escape from the gang & also malaysian police force. But the police force is everywhere in malaysia looking for those with the tattoos. So to escape from all that i run away to Australia to live a better life.
    …
    If i return to Malaysia I'm very sure that I'll be arrested by the police force. And the gang leader with his gang sure will look for me and will force me to join their gang again which I don't like at all. I want my life to be better without any problems. My family also wants me to be a better person. If I force to go back sure my life will be miserable & I might end up my life with the same situation that I have gone through earlier.
    …
    The gang that I was involve sure will force me to join them. If I fail to join them sure they will harm me in anyways. Once the gang leader have threaten me that if I didn't join them back they will kill me as I know a lot of their secrets. Plus the police force also will hunt for me because of the tattoo in my body.
    …
    The police force is hunting the gang that i was involved. In this
    case sure i can't get any help or protection from any of the
    authorities of my country.
    …
    I have tried that earlier with my parent's advice. But still the police force is everywhere in Malaysia. And the gang leader & the members also got contact everywhere in Malaysia. So if I relocate to any other part of my country also sure I'll be facing a lot of difficulties. I need to live a better life. That's the reason I run away to Australia.” [Mistakes in original.]

12. In the application for protection the applicant stated “yes” to the question of whether he had read the conditions of the visa, which include meeting the character requirements, and “no” to the following character questions:

    ·“Has any applicant included in this application been associated with a person, group or organisation that has been/is involved in criminal conduct?”

    ·“Are any applicants aware of being the subject of a criminal investigation or have criminal charges pending against them?”

    ·“Have any applicants committed a serious crime but have not been charged?”

    ·“Has any applicant included in this application been convicted of an offence in any country (including any conviction which is now removed from official records)?”

    ·“Has any applicant included in this application been the subject of an arrest warrant or Interpol notice?”

13. The applicant also stated “yes” to the following question in the application form:

    “To the best of their knowledge [the applicant does] not have any matters which are either unresolved or in which they have been, or are involved, that would bring into question whether they pass the character test as defined at section 501 of the Migration Act 1958, except as declared in this application form.”

14. The applicant did not add to or alter his claims in his pre-hearing form or produce any additional evidence about his claims prior to the hearing.

    Documentary materials and evidence

15. At the hearing on 25 February 2025 the Tribunal had before it:

    1.The Departmental file related to the original application for protection, which included the original application for protection and the delegate’s decision.

    2.The Tribunal file including all communications, submissions and information exchanges with the applicant following his application for review and the applicant’s ‘pre-hearing information’ form.

    3.Country Information Report for Malaysia, issued by the Department of Foreign Affairs and Trade (DFAT);[3]

    4.DFAT ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’;[4] and

    5.Other country information about Malaysia, relevant to the applicant’s claims, footnoted through this decision.

    [3] In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [4] Ibid.

16. Following the hearing the applicant submitted two photographs of his [body] to the Tribunal which are described below.[5] The post-hearing photographs were reviewed and considered before making this decision.

    [5] See below, paragraphs ‎22.  & ‎23. 

    Hearing

17. At the hearing the applicant was asked if he had completed his original application for protection himself.  He said that he had not completed the application directly as he did not have a smartphone or computer at the time and was “not sure how to fill out the application”. He said a friend of his [sibling] (who lived in Australia at the time), assisted him with the form on their computer. The applicant said he sat next to this person, who went through the form for him, with the applicant giving answers and directing the person what to write in each part. Asked whether that meant that the applicant agreed everything in the form was true and correct at the time the form was written and at the later time of the hearing the applicant agreed that what was stated in the form reflected what he had told the person and was true and correct.

18. The applicant was asked about his personal background and his family. His answers were consistent with what was stated in the form and summarised above.[6] When asked about his claims, the applicant stated that he was afraid to return to Malaysia because:

    ·     “I may be arrested by Malaysian authorities”; and

    ·     “I may be harmed by a group that I was part of when I lived there”.

    [6] See above, paragraph ‎10. 

19. The Tribunal asked the applicant questions about each of these fears, both of which arose because of the gang membership he described in his original application. Given they were interrelated ,some answers overlapped or were relevant to each. As a result, the below summary collates relevant common evidence about the applicant’s membership in a criminal organisation in Malaysia before turning to each respective claim for protection.

    Evidence as to membership and involvement in a criminal organisation

20. The applicant told the Tribunal that, after he finished high school, he was “brainwashed” into joining a criminal organisation known [by names].  He said that his friends convinced him he would “get an income … and I will have a shelter like a protective shelter if I join the group”. The applicant estimated that he had first joined the gang in [year range].

21. The applicant said that, for the first four or five months after joining the organisation he was only required to attend meetings with leaders as and when instructed to. He said he was subsequently subject to an initiation ceremony, in which his [body] was [cut]. That cut later became scarred, which apparently it was intended to do, as a marker of his membership of the gang. The applicant told the Tribunal that, some time later, he had [an image] tattooed on his [body] to obfuscate the scar. He could not remember the exact date he did this, but said that it was to avoid detection by police who had begun to arrest members of the organisation and, relatedly, the passage of legislation designed to tackle organised criminal gangs in the country. The applicant showed the Tribunal his [body] and submitted a post-hearing image of the same. The Tribunal finds the tattoo does serve to obfuscate the scar from casual observation.  

22. Later in the hearing the applicant told the Tribunal that he, along other gang members (at one point he said, “all members” and, at another, “some members”) tattooed their [bodies] with [another image]. [Deleted]. The applicant showed the Tribunal his [body] and submitted a post-hearing image of the same tattoo. The Tribunal finds the applicant has a tattoo of [another image] on [that part of the body]. 

23. The applicant was asked why he did not seek to alter, obscure or remove his [second tattoo] given he had obfuscated his [first] scar. He told the Tribunal doing so was unnecessary because: “I hide [that part of the body] by wearing [clothing], so there's no need to hide in any other way”.  The Tribunal finds that the applicant’s [tattoo] can be – and indeed during the hearing was – hidden from view under [clothing].

24. Following his initiation, the applicant said he was directed to conduct a range of criminal acts related to protection racketing in his local area. He said that initially he would be sent out to collect monthly payments from each business before he was promoted in the organisation to more actively involved in direct criminal activities. That included being instructed to “hit or beat people” and to “take a knife or sharp weapon to attack them”, which the Tribunal took to mean victims. The applicant was asked whether he had complied with these instructions on behalf of the criminal organisation and he agreed that he had.

25. The applicant’s evidence was that [he continued to be involved in criminal conduct and passed on instructions to other gang members]. The applicant said that all money taken from criminal conduct by him, and his subordinates went “to the gang directly”. He said that he was paid a monthly salary of about RM[amount] (approximately A$[amount] at the time of the hearing), but only when he requested it from his superiors.  The applicant told the Tribunal that the only member of his family who knew he was a member of the criminal organisation was his [brother]. However, he said that his [brother] was not a member of the gang.

26. During the hearing the applicant was asked if he had committed serious crimes on behalf of [Gang name 1] while he was in Malaysia. He agreed that he had. Asked if he had been arrested for those activities the applicant responded that “police made an attempt to arrest me” but went on to claim that “in my country, there’s a person [who] exists in every police station who will protect us from arresting by paying money to these police authorities”. He said that the police were “prevented from arresting me”.

    Evidence as to exiting [Gang name 1]

27. The applicant’s oral evidence as to when or if he had stopped being a member of the criminal organisation was confused and, at times, inconsistent.

28. Initially the applicant stated that he “tried to get out from the gang” when certain anti-organised-crime legislation was enacted in Malaysia in 2017. He said the new laws allowed police to arrest people marked with gang symbols. The applicant referred to this Malaysian legislation by the acronym “SOSMA Act”.

29. The Tribunal was not able to find any country information about an act with the acronym SOSMA passed in 2017 but takes the applicant to be referring to the Security Offences (Special Measures) Act 2012: an Act “for special measures relating to security offences for the purpose of maintaining public order and security and for connected matters”. That Act is addressed to, inter alia, providing police with powers to detect, disrupt and reduce the incidence of serious and organised crime.[7] On [date] a member of the Malaysian government lauded the crackdown on [the gang] as a “major case” achievement under that Act and a justification for its continued use to break up organised criminal organisations.  A separate Malaysian law, referred to in the Security Offences (Special Measures) Act 2012, is the Malaysian Societies Act 1966. That interrelated Act proscribes membership of declared criminal organisations, along with display of any unlawful insignia associated with those organisations.[8] Based on that country information, the Tribunal finds that the applicant sought to leave “[Gang name 1]” not because of any new law passed by the Malaysian parliament in that year, but because authorities began a target that organisation around 2017 using existing anti-organised crime laws.[9] However, the Tribunal accepts the applicant’s evidence that he sought to exit the criminal organisation at that time.

    [7] Security Offences (Special Measures) Act 2012 (SOSMA) (Act 747) (Malaysia), short and long titles.

    [8] Societies Act 1966 (Malaysia), ss 43, 50.

    [9] Above note 12.

30. Initially the applicant told the Tribunal the gang did not permit him to leave and continued to direct him to commit crimes for them up until he left Malaysia:

    “So, firstly [in 2017] I approached the gang leader and told him about my wish of existing the group and I told him I need to live a life outside the gang. So, they didn't accept my resignation. So, they started troubling me with my colleagues from the gang because they we all know what we've been doing.”

1. Elsewhere in the applicant’s evidence he said he had, in fact, left the gang:

   “So, by the time I've started the business, I've already left the group. So, it was in 2017 I left the group, and we've started the business in 18”.

2. When the Tribunal raised the inconsistency with his other evidence the applicant replied:

   “Okay, I've already exited the group at that time, but they were still chasing me. They were still contacting me. They were still instructing me over the phone to do [things for them], but I never be part of or never involving any activities.”

   Claim a) Fear of Malaysian police.

3. The applicant said that, given his historic association with a criminal gang and participation in unlawful activities on its behalf, he is afraid he will be harassed and arrested by authorities if he returns to Malaysia. The applicant said that his tattoo and body marking would make him a target of the ongoing SOSMA crackdown.

4. The Tribunal asked the applicant why he considered that the police pursuing in respect of his suspected criminal conduct would constitute persecution. He responded: “I'm saying not just because of the criminal activities I've done, being part of the social group or the gang might be another reason I might get arrested”. The Tribunal asked if the applicant meant that he considered he would be pursued by police simply because of his historic association and he agreed that was part of his claim. 

5. The Tribunal asked the applicant why, if he was returned to Malaysia, he could not just hide [that] tattoo as he had his [other] tattoo – as he had explained by wearing [clothing] that covered the tattoo – and he agreed that “I can, I wouldn’t say I can’t”. However, he additionally claimed that his name was on “a list” of proscribed individuals held by police, namely:

   “Because I was part of [the gang], my name was listed in the group. So, it's been circulated to other authorities. So, they are aware that I was part of the group, and everybody started chasing me.”

6. The applicant was asked how police obtained this list, and he said that the gang itself gave it to them. Asked why they would do that, he said “ever since I've exited the gang group, they were not happy with the decision I made that they started chasing me with the help of [police]” who they had bribed. He claimed that once his name had been given to the police they had come to his house between two and four times “chasing” him. The Tribunal reminded the applicant that his evidence was that he hadn’t been arrested at any time while he was in Malaysia, and he said:

   “Okay, I never got arrested while I was not at home. The policeman came and my … [brother] called me and advised me they were chasing me … So, I've been told my [brother] that the police authorities came and looking for me because and they advised I was part of the gang and I was doing some illegal matter. That's the reason they were chasing me.”

7. The Tribunal expressed its concern that such a narrative did not reflect plausible investigative conduct. That is, police would not inform a third party, much less a relative of a suspect the basis for their suspicions or the evidence they had against them before dealing directly with the suspect.  The applicant replied:

   “But our country operates in a different way. But there are incidents I've noticed, and I've heard and seen police were telling the reasons while they were chasing others.

   … And mostly I'm not at home. So, my [brother] was around home, and he was the one passing the messages on to me and that's what he has been told by the police and that's what he told me.”

8. The Tribunal asked what specific harms the applicant feared from police. He replied:

   “I will lose the current peaceful current life, which is the peaceful life I'm, I'm having in Australia … if I go back or if I stay in Malaysia, I will end up I would have arrested and I will lose few years of my life because I don't know if I get arrested, how long I have to be in the gaol…

   If I return back to Malaysia … authorities will get to know that I am back and they will find the old problems or the old cases, they will reopen it and they will start chasing me.”

9. The Tribunal set out and explained country information to the applicant which indicated that, following a decision of the High Court in Malaysia, having a tattoo or symbol was not a reason, simpliciter, for a person to be found guilty of gang membership. As such, police no longer arrest people simply because of their body markings. The Tribunal explained that the evidence might suggest that the applicant was a police target because of his serious offending, not simply because of his markings or historic association.  The applicant reiterated that from 2017 onwards police have arrested numerous members of [Gang name 1] and while the crackdown subsided for a while, Malaysian authorities have begun to “reimplement or reintroduce the [SOSMA] Act recently in order to prevent the recent crime activities in Malaysia”.

   Claim b) Fear of Malaysian gangs.

10. The applicant’s separate fear of returning Malaysia was from gang members who wished to harm him on account of his historic activities. Initially he claimed that this was [Gang name 1] members themselves, who were unhappy that he had “left” the gang. However, he later said that:

    “So, there are other enemies apart from the gang members. They might harm me because of the activities I have done while I was part of the gang group. …
    And the enemies have a group of members, I mean you know so they are from other group members.

    … So, like as I mentioned to you, I was [involved in criminal conduct in a suburb]. So, there are there were other groups be part of that suburb. They were not happy with our activities. So, we always had clashes and issues at that time.  So, they will end up going back to that issue.”

11. The Tribunal noted that the applicant had exited [Gang name 1] two years before departing Malaysia and had provided evidence that he had not been harmed by that gang or any other gangs during that time. Given that is the case, the applicant was asked why he faced any real risk of harm eight years after leaving the gang. He replied:

    “I left the group in 17 and started the business in 18. In between that. They were giving me lots of trouble. They were chasing me. For example, if I go somewhere by myself, they follow me and do something like giving some instruction … They were chasing me and giving me lots of trouble in between that time. But I try my best to get away from them, stay away from them. They were asking me to do something, or they were instructing me, but I never follow.

12. The applicant did not otherwise address the Tribunal’s concern.

13. The Tribunal asked what the specific harms he feared from gangsters arising from his experiences in Malaysia and what he believed might happen if he returned there. He said: “ There were some clashes and issues we had while I was there and that's the reason I wanted to get out from the group”. Separately he stated: “[Gang name 1] never force me or never said that they will do that, but there were other groups for me, they will harm me in other ways”.

    Other issues and concerns

14. It was pointed out to the applicant that he had stated in his original application that he had never committed any serious crime for which he was either charged or not charged. It was also highlighted to the applicant that, in his written claims, there were no mention that he was involved in serious criminal activities, but only that he could not obtain assistance because his “friends … think I’m involved in illegal work”, inferring that this was only a subjective belief, rather than an objective fact.

15. The Tribunal explained that the new material about serious criminal activities were new and not before the department and, in fact had been denied in the application before the department.  The applicant agreed his conduct amounted to serious criminal activity which was relevant to his application for protection. The applicant said that when he had been articulating his claims to his friend assisting him to complete the form “I didn't go into deep details” and “the story was written was like an overall high-level story”.

16. The Tribunal noted that the applicant’s admission that he committed and directed the commission of serious crimes were matters that were relevant to his claim at the time he made it. It was put to the applicant that a potential reason he did not raise the serious crimes was out of concern for losing his visa entitlement. The applicant said he understood the issue but chose not to address it directly.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for protection visa

17. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

18. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

19. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

20. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

21. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

22. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    REASONS AND FINDINGS

23. A preliminary question relating to the assessment of the applicant’s evidence at hearing is whether it involved new claims and evidence which were not raised before the primary decision was made. The answer to this question has separate implications: first to the weight the Tribunal gives to any parts of the evidence which it considers to be new; and second in respect of its duty to be satisfied the applicant meets the criteria for protection under the Act. 

24. In respect of the issue of weighting the identification of whether evidence is late is relevant to both the Tribunal’s express decision-making powers set out under s 367A of the Act and its general fact-finding function described above. Section 367A of the Act states:

    (1)  This section applies if, in relation to an application for review of a reviewable protection decision (the primary decision), the applicant:

    (a)  raises a claim that was not raised before the primary decision was made; or

    (b)  presents evidence in the application that was not presented before the primary decision was made.

    (2)  In making a decision on the application, the ART is to draw an inference unfavourable to the credibility of the claim or evidence if the ART is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

25. Whether claims or evidence are “new”, in the sense that they were not raised or presented before the primary decision maker, is a question of fact for the Tribunal to determine.[10]   Should the Tribunal determine that the claims or facts are new, then the Tribunal must reach a state of satisfaction as to whether the applicant has a reasonable explanation for not presenting the claim or evidence before the delegate.[11]  If it does not consider the explanation reasonable, then the Tribunal is under a mandatory obligation to draw an unfavourable inference about the claim or evidence.

    [10] SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331 (16 March 2018) [24]

    [11] ASJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 476, [11]

26. There is some circularity here, evidenced by the nature of the case put before the Tribunal, that is, the Tribunal must first make findings of fact that identify the claims put to the Tribunal at the hearing to then go on to assess whether they are the same, or sufficiently distinct from those claims put before the primary decision maker. A positive finding that claims are new, and there is no reasonable explanation for their lateness may, by the operation of 367A affect the weighting the Tribunal gives them and, by consequence, its fact-finding role in relation to them. In this case the Tribunal notes that it is satisfied that 367A does not operate on the findings of fact made in respect of the applicant’s gang membership and criminal conduct. Given that this is the case, it first sets out its findings of fact on these claims and related evidence, then considers whether they are “new” and finally whether there is a reasonable explanation for their late addition to the record. 

    Was the applicant a member of a criminal organisation?

27. Country information indicates that an organised criminal organisation named variously [deleted], does operate in Malaysia, and is believed to have operated for more than [number] years.[12]  The criminal organisation is associated with violent crime, extortion, drug trafficking, prostitution, armed robbery and murder.[13]   Various news stories indicate the organisation was targeted in a crackdown on organised crime from around 2017, which culminated in the  arrest of the organisation’s [“mastermind”].[14] After that date there are fewer reports about its operations, although it apparently remains active in drug trafficking,  and continues to recruit young people into its ranks.[15]  The Tribunal accepts that [Gang name 1] is an organised criminal entity which has been and continues to conduct systemic violence, intimidation, extortion and other illicit activities.

    [12] [Information deleted].

    [13] [Information deleted].

    [14] Ibid.

    [15] [Information deleted].

28. The Tribunal accepts the applicant’s evidence that the applicant:

    ·     Was a member of [Gang name 1] from the time he left high school until at least 2017.

    ·     Had [been involved in criminal conduct].[16]

    ·     Passed on orders from senior figures in the [gang].

    [16] [Information deleted]

29. The applicant’s evidence as to these things was clear, cogent and consistent. [Deleted].   

30. Based on the country information about the size, national reach, and crimes organised and committed by the organisation the Tribunal finds that the applicant reached a relatively low level [within the criminal organisation].

    Did the applicant commit and/or direct the commission of crimes for [Gang name 1]

31. In the oral hearing the applicant admitted personal and in joint commission of criminal acts as a member [of a criminal organisation] in Malaysia. Specifically, he:

    ·Admitted participation in violent gang activity, including physical assault and use of weapons against victims (he “hit or beat people”, and used a “knife or sharp weapon to attack them”).[17]

    ·Described conduct consistent with extortion and racketeering.[18]

    ·Explained that he benefited from bribing public authorities to avoid charges for this conduct.[19]

    ·Accepted that he was involved in systemic conduct that amounted to serious crime.[20]

    ·The applicant’s admissions indicate both personal and joint commission of criminal acts as a member [of] a criminal organisation.[21]

    [17]Applicant’s hearing evidence (verbatim transcript) :  “So they instruct us to go and hit or beat people or they instruct us to take knife or sharp weapon to attack them” and to the responding question “I understand what you were instructed to do. Did you ever assault anyone or commit any other criminal activity to a person or persons?”] “Yes, I did.”

    [18] Applicant’s hearing evidence (verbatim transcript) : “The gang collect money from the shop on a monthly basis for protection”.

    [19]Applicant’s hearing evidence (verbatim transcript) :  “In my country, there's a there's a person exists in every police station who will protect us from arresting by paying money to these police authorities. So we ended up using that person to pay something. So they got prevented from arresting me.”

    [20]Applicant’s hearing evidence (verbatim transcript) :  [in response to "So are you now saying you did commit serious crimes in Malaysia? Because assault, particularly serious assault, would be a crime?"]: “Serious crime, yes. Correct.” Separately, “Yes, I agree that I have done criminal activities, but I never been charged.”

    [21]These include: assault causing actual bodily harm [see e.g. Crimes Act 1900 (ACT), s 100]; extortion [Criminal Code Act 1995 (CCA), s 134.2] direction of, or association with, a criminal organisation [CCA, 390.3(1),390.3(6)]; instruction or recruitment of others to commit violence on behalf of a criminal organisation[CCA 390.5]; directing criminal activity [CCA,390.3]. In relation to joint commission: CCA s 45A, or for aiding and abetting Criminal Code 2002 (ACT), s 45(1).

32. These admissions are clear, direct and internally consistent. The applicant made them voluntarily and without duress or misunderstanding.

33. The Tribunal is satisfied the applicant committed or jointly acts which would have been crimes had he been arrested and charged in Malaysia before he came to Australia.[22]  The conduct, if proved would have fallen within code provisions that constitute a serious Australian offence, if they had been committed in Australia.[23] The admission to the use of weapons, the context of intimidation, and the habitual nature of the violence, are aggravating factors which the Tribunal finds sufficient to satisfy it that applicant was involved in serious criminal conduct in his country of origin over a prolonged time period.

    [22] Criminal Code 2002 (ACT)), s 45A – aiding and abetting (also Criminal Code 2002 (ACT), s 45(1), Criminal Code Act 1995, s 11.2 (Cth)

    [23] Namely: Assault causing actual bodily harm, which is punishable by up to 5 years (Crimes Act 1914 (Cth), s 24; ACT Criminal Code, s 23); Extortion by obtaining benefit by intimidation or threat which is punishable by more than 3 years (Criminal Code Act 1995 (Cth), s 134.2); Direction of or association with a criminal organisation: which falls under s 390.5 Criminal Code Act 1995 (Cth) – directing criminal activity (max 10 years) or s 390.3 Criminal Code Act 1995 (Cth) – associating with criminal organisation (max 3 years); and instruction or recruitment of others to commit violence, which falls under either s 390.4 Criminal Code Act 1995 (Cth) – recruiting for a criminal organisation (max 5 years); or s 11.2 Criminal Code Act 1995 (Cth) – aiding/abetting/counselling (equivalent culpability).

    Are the applicant’s claims and supporting evidence about gang activity and criminal conduct new?

1. The Tribunal considers the applicant’s evidence as to his serious criminal activities to be new material not before the original decision maker rather that an elaboration of the claims and evidence in his original application. That is for two reasons explained below.

2. First, in his original application the applicant specifically denied being involved in serious criminal activities. He also denied being associated with serious criminal groups or organisations or persons who are or have been involved in criminal conduct. In that application he also confirmed that he had never committed a serious crime for which he has not been charged. He also attested to not being aware that he was subject to a criminal investigation, which was ultimately inconsistent with the oral evidence he gave at the hearing.  While the applicant said he had assistance completing the application he agreed that he had the content translated to him and directed its completion. He also told the Tribunal that that what was in the form was true and correct and were the statements that he had had made at the time with the assistance of an intermediary.

3. Second, and relatedly, the narrative presented by the applicant in his original application was one of guilt by association rather than culpability and responsibility for organised criminal conduct. Certainly, the applicant acknowledged the involvement is with a criminal gang in his written materials. However, what was described was oblique. It did not involve an acknowledgment or admission that the applicant may be a person of interest because of his criminal conduct. It confined the basis of police interest to the applicant’s “attachment” to a specified organisation. As was put to him in the hearing his application did not contain the admissions of [criminal conduct] that he made at the hearing. He only stated that others “thought" he was involved in “illegal work”, not that he actually conducted and directed criminal acts. That is his original claims were based on unjustified assumptions of his guilt by association rather than admitting that what he feared related to actual [criminal conduct]. The applicant acknowledged this issue but reiterated that what he said at the hearing was just an elaboration of what was contained in the original application.

4. In the Tribunal’s view risking arrest from association with an organisation is of a materially different category to risking arrest for committing and directing others to commit serious crimes for that organisation. In the Tribunal’s view the applicant would have known this, and could have been expected to include that evidence, given a key aspect of his claim was fear of Malaysian police. That is, the new material substantially alters the narrative as to why the applicant may fear those authorities. The Tribunal does not accept that the oral testimony was a mere elaboration on what he put in his original application but were functionally new and distinct from his original claims and evidence.

   Does the applicant have a reasonable explanation for the late claims and evidence?

5. When the Tribunal raised its concern that the evidence about the applicant’s gang activity and related criminal conduct was new and not before the delegate, the applicant’s principal response was simply to argue that the claims and evidence were not late. For the reasons set out above the Tribunal does not accept that explanation as reasonable in the circumstances. The Tribunal can identify no other reasonable explanation about the late claims and evidence made by the applicant. However, the Tribunal offered the applicant an explanation; namely that he was seeking to avoid exclusion on character grounds. The applicant did not reject this explanation but also did not accept it as the real reason he did not admit to organised criminal activity in his original application.  Having not done so, the question is whether the Tribunal can identify for itself what the explanation is for the late evidence.

6. What is clear from the wording of 367A(2) is that the burden falls “squarely” on the applicant to “have” an explanation for the late material, not for the Tribunal to provide one for them.[24] In the Tribunal’s view that does not make the applicant’s proffered explanations (or lack of them) conclusive and dispositive of what the actual explanation for lateness is. Such a conclusion is supported by a contextual reading of the provision, which operates as part of a forward-looking exercise by the Tribunal to determine future risks based on all relevant evidence before the decision maker at the time of the decision.

   [24] s5AAA of the Act Prasad v MIEA [1985] FCA 46, [33] (Wilcox J); MIMA v Lay Lat (2006) 151 FCR 214, [76] (Heerey, Conti && Jacobson JJ).

7. The question of whether the Tribunal can reach a conclusion about the explanation for lateness under s367A which is different to that proffered by the applicant is to be answered by reference to the Tribunal’s inquisitorial functions.  While the onus falls on the applicant to present their case, the Tribunal is not required to accept uncritically any or all assertions they make.[25] Nor can s 367A “be read as codifying the circumstances in which the Tribunal may draw an unfavourable inference”,[26] which necessarily includes its scrutiny of any explanation made by the applicant under s367A.  For instance, the Tribunal may not accept the explanation of proffered by an application for lateness, find that none of the assertions made to support that explanation are true, and determine to give the explanation no weight. In those circumstances the Tribunal is rejecting the applicant’s explanation and, in practice, substituting its own; that is, there was no explanation for lateness.  By extension, the record may, itself, indicate what the reasonable explanation for lateness is and the Tribunal may subsequently prefer that explanation to the one it has rejected. This is one of those situations.

   [25] Randhawa v MILGEA (1994) 52 FCR 437, 451 (Beaumont J).

   [26] EQU19 v MICMA [2023] FCA 1182, [51](Raper J).

8. Here, the Tribunal considers the most plausible explanation to be that the applicant was not honest about his criminal history because the form he was completing made it clear that these were character considerations that would affect his application for protection. In the circumstances, the Tribunal considers the late evidence to be more reliable than what was provided in the original application and reveals the manufactured narrative it supported. In those circumstances the Tribunal considers the desire to avoid self-incriminating at the application stage to be the reasonable explanation as to why the applicant was not honest about his gang history. Here the Tribunal uses the term reasonable in the context of something which “describes why something happened”,[27] rather than countenancing the applicant’s evasiveness and dishonesty in his original application. That is, the reason for the late claim can be reasonably explained by considering all the facts and circumstances of the case.

   [27] Macquarie English Dictionary, Online Edition, 2025.

9. Based on its findings the Tribunal does not treat the applicant’s claims and evidence about his gang activities or criminal conduct with an adverse inference and makes the below findings of fact about them.

   Is the applicant a person of interest to Malaysian authorities?

10. Having accepted the applicant’s evidence that he [was] involved in and directed serious criminal acts it also accepts he may be a person of interest to Malaysian authorities. The Tribunal’s assessment of the country information is that [Gang name 1] is considered by government and police in Malaysia to be [a] dangerous and problematic criminal organisation. The information indicates that authorities have made various efforts to break up the organisation, arrest its members and prosecute those that have participated in and directed its criminal activities. These efforts are ongoing, and the Tribunal’s interpretation of the country information is that they will continue.

11. If the applicant’s historic gang-related conduct is recorded or becomes known to authorities it is probable he would be investigated by them, and as a result might be arrested, prosecuted, or detained if there is sufficient evidence of his crimes. However, the Tribunal does not consider that this is certain on the evidence before it. That is, first because it does not accept the applicant’s evidence that he is on a list of gang-members that is held by police

12. It is illogical that a criminal organisation – much less one of the size, character and reach of [Gang name 1] – would directly facilitate the arrest of its members or provide intelligence information to the authorities they are seeking to avoid. In the applicant’s case it is particularly implausible, given his own contradictory evidence that the gang had not accepted his exit and continued to actively direct him to commit crimes until he left the country. It is illogical that the gang would simultaneously place him within the reach of the authorities who would limit his ability to conduct the acts they were requesting of him, and indeed into a situation where he may provide intelligence about ongoing gang operations to police.

13. Nor does it make any sense that the police would, if the applicant was on a list reveal that they held that list before his arrest, to his brother. Investigators are highly unlikely to telegraph the source of their evidence, and certainly not likely to give a suspect the opportunity to flee, destroy evidence, alert other suspects or otherwise jeopardise the operation.

14. Finally, the applicant’s ability to openly operate a business with his [sibling] for two years before his departure to Australia. According to his own evidence, he was not arrested or charged for any offences during that time. That contradicts his other assertion that he had fallen out of favour with the gang, and that the gang – implausibly – was providing police with his details.  The record and evidence also indicate that he was able to freely exit the country through ordinary means. That indicates that he was not on an official list or a priority target for Malaysian authorities.

15. In sum, the Tribunal does not accept the applicant’s claim that he is known to those authorities because he is on a list of [Gang name 1] members which was provided by [Gang name 1] itself to authorities. That claim is not credible. Nor is there any other objective evidence before the Tribunal to indicate the applicant is actually known to Malaysian authorities as someone who was a member of [Gang name 1] or committed crimes for that criminal organisation. 

    Is the applicant a target of gangland reprisals?

16. The Tribunal does not accept the applicant’s assertion that he risks harm from [Gang name 1] or rival gang members on his return to Malaysia. The applicant lived openly in Malaysia for two years, openly operating a business, and while his evidence was that [Gang name 1] members attempted to direct him to commit crimes for them, he ignored them during that time. The applicant did not provide any evidence that [Gang name 1], or any other gang harmed him during this time.  

17. The applicant was not able to provide any specific details of the risks he faces from gangs in Malaysia. His concerns stemmed from general notions of retribution based on historic conduct but lacked a clear explanation about why any person or organisation would continue to harbour animosity towards him more than eight years on.  At its highest, the fear appeared to be that he would be targeted because of his gang markings. However, the applicant’s own evidence was that he could hide his gang markings and avoid any risk of being targeted by rival gangs because of those markings.   

18. The Tribunal accepts that, following the applicant’s “exit” from [Gang name 1], he was subjected to continued pressure to participate in gang activities. However, given his refusal to comply with the gang’s demands had no serious or significant repercussions for the last two years he lived in Malaysia, the Tribunal is not satisfied that [Gang name 1] poses him any risk if he were to return to Malaysia. For the same reasons the Tribunal is not satisfied that there is objective evidence the applicant would be forced to re-join the gang or commit crimes for it. That finding is strengthened by the Tribunal’s satisfaction that there is no compelling evidence that the gang would even be aware of his return to Malaysia.

19. Based on the objective evidence before it the Tribunal finds that the applicant does not risk personal or specific harm from [Gang name 1] or any other gang in Malaysia beyond that shared by the general population.

    Does the Serious Crime Exclusion Apply?

20. Article 1F(b) of the Refugee Convention stipulates that a person is not a refugee if there are “serious reasons for considering” they have committed a serious non-political crime outside the country of refuge prior to admission. This is implemented in materially identical terms in s 5H(2)(b) and s 36(2C)(a)(ii) of the Act. Subsection 5H(2)(b) excludes such a person from the definition of a refugee, while s 36(2C)(a)(ii) excludes them from complementary protection (Serious Crime Exclusion).  There are no functional differences between the provisions, such that if a person is found to be excluded under one criterion, they are excluded under both.[28]

    [28] GWRV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 602, [29].

21. The Serious Crime Exclusion was not relied upon by the delegate in the decision under review because the application did not disclose any criminal conduct in Malaysia. However, the applicant has since admitted to such conduct. The question now arises as to whether the Tribunal must consider whether the Serious Crime Exclusion applies.

22. The Tribunal notes that previous tribunals reviewing protection decisions pursuant to s 36 of the Act were found not to possess jurisdiction to consider the application of the Serious Crime Exclusion. This was based on a structural interpretation of how previous statutory regimes bifurcated protection decisions and invested reviewable subject matter jurisdiction in respective statutory bodies. Hence, in Daher,[29] the Federal Court found that the Refugee Review Tribunal (RRT) had no jurisdiction to review exclusion findings because it could only review “Part 7 reviewable decisions,” which did not include decisions made under s 5H(2). Those matters were reserved to the AAT. Based on the structural jurisdictional bifurcation of the regime as it then was, the court found that:

    “[If] the decisions which the Refugee Review Tribunal had jurisdiction to review did not include a decision to refuse to grant a protection visa relying upon [the Serious Crime Exclusion] then it follows that the Tribunal could not on review adjudicate upon [the Serious Crime Exclusion]  issues, even if (or especially if) such issues were advanced for the first time on review.”

    [29] Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107.

23. That reasoning persisted after the RRT was merged into the AAT in 2015.[30] Although amalgamated, the relevant provisions continued to confine exclusion matters to the General Division, while protection matters remained with the Migration and Refugee Division. These were statutorily distinct divisions with separate memberships. In GRVW, Colin J held that the legislative bifurcation remained in substance, even though the institutional form had changed.[31] His Honour found that “by reason of the bifurcation” only the General Division of the Tribunal could review Serious Crime Exclusion matters,[32] noting: “Otherwise, the structure by which members of the Tribunal are appointed to the Migration and Refugee Division and the different statutory regime to deal with other aspects of applications to review protection visa applications would be compromised”.[33]  

    [30] Tribunal Amalgamation Act 2015 (Cth).

    [31] GWRV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 602, [21] (Colvin J).

    [32] Ibid.

    [33] Ibid, [24] (Colvin J).

24. The principle from the pre–Administrative Review Tribunal (ART) regime cases was that a Tribunal without jurisdiction over s 5H(2) could not exercise that jurisdiction merely because the issue arose on review. If a Tribunal determined an exclusion issue for the first time, it would be effectively making a decision that deprived it of its own jurisdiction. Its decision would, metaphorically, pull out the jurisdictional rug from under itself.  That is because such a decision would have, if made by the original decision maker, resulted in a different statutory entity receiving the matter on review. However, that statutory structure no longer exists.

25. The present Administrative Review Tribunal (ART) is a unified statutory body created under the Administrative Review Tribunal Act 2024 (Cth). The Act has been amended to reflect this change.[34] The former divisional model has been replaced with a single unified Tribunal whose jurisdictional areas and member assignments are internally managed by the President.[35] While it is true that the new legislation denotes jurisdictional ‘areas’ these are not confined to proscribed divisions. Members may be appointed to multiple areas, and the President may direct a proceeding be exercised in the area or list deemed appropriate,[36] even if it encompasses issues across multiple areas.  That is, there are no longer statutorily proscribed structural limits on reviewable subject matter jurisdiction.

    [34] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024,

    [35] Ibid, ss 196(1) & 199(3).

    [36] Ibid, s 196(4).

26. The ART now conducts both Part 5 and s 500 reviews. Part 5 governs the review of “reviewable protection decisions” as defined in s 338A of the Migration Act. A decision is excluded from review under Part 5 only if it was made relying on s 5H(2), s 36(1B), (1C), or 36(2C). If so, review proceeds under s 500(1)(c). In either case, the decision is reviewed by the same statutory body—the ART. The distinction is procedural, not structural.

27. From the position of the statute, there is no distinction between parts of the Tribunal that receive jurisdiction over protection or exclusion issues. In such circumstances, the Tribunal does not metaphorically pull the jurisdictional rug from underneath itself by considering the Serious Crime Exclusion, because it would also be the review body had the original decision relied on that ground. There is no legislative reason it cannot now consider the issue even if it was not raised earlier.

28. The fact that neither s 5H(2)(b) nor s 36(2C)(a)(ii) of the Act were considered by the primary decision maker does not alter the Tribunal’s jurisdiction under the present statutory regime. Section 338A(1)(c) excludes review under part Part 5 only those decisions that were made in reliance on sections 5H(2)(b) and 36(2C)(a)(ii). It does not prohibit the Tribunal from considering s 5H(2) where it arises on the evidence during a valid review.[37]

    [37] This conclusion is unaffected by r 4.33 of the Migration Regulations 1994, which limits the form of permissible orders when remitting a matter under s 349 of the Act. That provision prohibits orders stating that s 5H(1) does not apply because of s 5H(2). However, this restriction applies only to the form of orders upon remittal. It does not limit the Tribunal’s function when conducting review.

29. Even if the delegate had relied on the Serious Crime Exclusion, the Tribunal reviewing that decision would have been the same statutory body—the ART. The matter may have been allocated to a different internal list, but that allocation is not a subject of the statute, and to read the statute as generating such a bifurcation would appear to deprive the reformed regime of one of its fundamental purposes. That is to allow for the President to “have the flexibility to rearrange the ART’s caseloads into groupings with similar subject matters, procedures and member skills, in contrast to the [previous] system where historical and other reasons determine in which Division matters are heard”.[38]  

    [38] Justice Kyrou “Key Features of the New Administrative Review Tribunal” Paper delivered by Justice Kyrou, President of the Administrative Appeals Tribunal, at a COAT (SA) seminar, Adelaide, 16 April 2024 <

1. In summary, the Tribunal is not subject to a confined in its subject matter jurisdiction which precludes it from reviewing or deciding, de novo, matters raising the  Serious Crime Exclusion. It is performing the task conferred on it by law: to determine whether the applicant is entitled to a protection visa. That necessarily includes determining whether the applicant is excluded from the Act by either section 5H(2) or section 36(2C)(a)(ii), even where that issue arises for the first time at hearing. Critically, the Serious Crime Exclusion is not a discretionary ground for refusal, particularly in relation to s 5H(2) —it is an element of the statutory refugee definition. This creates a compound jurisdictional fact that must be satisfied before an applicant can satisfy the criteria for protection, namely: that the applicant satisfies the inclusion criteria in s 5H(1) and is also not excluded under s 5H(2). Consequently, in situations where the Tribunal is seized of a matter in which evidence arises that engages s 5H(2), the Tribunal must consider and make findings about that evidence as a necessary question of its jurisdictional competency to review the matter. That is, unless the Act expressly prohibits it from doing so—and the Tribunal is not satisfied that it is under its present legislative framework—the Tribunal cannot lawfully ignore a jurisdictional fact once it becomes relevant. The Tribunal stands in the shoes of the original decision maker, asking the same questions of law that decision maker was required to, but considering the entirety of the evidence before it at the time of the decision.[39]   As Gleeson CJ stated in MIMA v SGLB[40]:

   “The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the Minister … and the [Tribunal] exercised all the powers and discretions conferred on the decision-maker.”

   [39] Administrative Review Tribunal Act (2024), ss 54 and 105; Frugtniet v ASIC [2019] HCA 16, [14]; Shi v MIRA (2008) 235 CLR 286, 327 (Kiefel J).

   [40] MMIA v SGLB [2004] HCA 32 at [46].

2. A confirmed and serious admission of prior criminal conduct does not simply “raise” the question of whether the exclusion applies—it squarely engages it. The Tribunal cannot conclude that the applicant is a refugee under s 5H(1) without also being satisfied that s 5H(2) does not apply. Those are co-dependent limbs of the statutory definition.  While s36(2C) is expressed as a negative proposition, namely that the applicant is taken not to satisfy the complementary protection criteria based on the exclusion, the result is functionally the same. That is, both because of the correlative nature of that provision with 5H(2), and because of the obligatory nature of the provision, which deprives the person of the status as someone afforded complementary protection because of the satisfaction of the decision maker that certain facts exist.

3. In sum, where the Tribunal is validly seized of a protection matter, and evidence of exclusion arises, it would appear to be jurisdictionally obliged to determine whether s 5H(2) is engaged. That task falls squarely within the Tribunal’s statutory function whether it is invested with reviewable subject matter jurisdiction under either part 5 or s 500 of the Act.

   Findings as to character of offending in relation to exclusion

4. The Tribunal is satisfied that the applicant was on notice and aware of the character exclusion implications of his admitted criminal conduct. The applicant, with assistance, completed his original application for protection, which contains direct and unambiguous questions about criminal history and prior offending. He acknowledged that he had read and understood the conditions and consequences of the visa application at the time, which most notably concern suitability on character grounds. The Tribunal separately and directly raised its concerns that the applicant had not been forthcoming about his past offending because he must have been aware that he might be excluded on character grounds if he included these things in his application for protection. The applicant but acknowledged the issue but otherwise did not address it other than to deny he had framed his claim to avoid self-incrimination on character grounds.  The Tribunal is satisfied the applicant was put squarely on notice of the possibility that his own admissions, voluntarily given, could exclude him from protection under the Act. He was given a meaningful opportunity to respond and was not taken by surprise by the issues relating to possible exclusion on character grounds relating to a history of offending and organised criminal conduct.

5. Based on its findings of fact, which are set out above, the Tribunal considers that it can reasonably and properly be concluded that the applicant committed crimes in his country of origin.[41] It is not essential or necessary that he was charged or convicted for his crimes; the Tribunal considers the applicant’s free and cogent admissions of the criminal behaviour to be sufficient.[42]  Had the crimes been committed and prosecuted in Australia they would be categorised as serious crimes, attracting more than three year sentences.[43] As crimes which were, on the applicant’s evidence “accompanied by the use of deadly weapons, [or  involved] serious injury to persons, or [for which] there is evidence of serious habitual criminal conduct” they would also be considered serious under Art 1F of the Convention.[44] The applicant made no suggestion that his criminal conduct had political motives and the Tribunal does not consider that there is any objective evidence that was the case and notes the crimes involved violence against others.[45] The Tribunal is therefore satisfied that the crimes admitted to are serious and non-political in character. Accordingly, he is excluded from the refugee and complementary protection provisions of the Act.

   [41] Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173,186 (Branson J).

   [42] Ibid, 179 (Whitlam J), 191 (Sackville J).

   [43]Ibid, 185 (Branson J), 191 (Sackville J); In respect of crimes admitted to and their seriousness in Australia see notes 21-22.

   [44] UNHCR Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, (HCR/GIP/03/05) HCR/GIP/03/05, Protection Policy and Legal Advice Section,

   [45] Act, 5(1).

   Does the applicant satisfy the refugee criterion for protection?

6. The Tribunal is satisfied the applicant has committed serious crime in Malaysia. If the Tribunal is required to consider the Serious Crime Exclusion as a necessary exercise of its jurisdiction to review the primary decision, then its satisfaction of that fact is determinative and dispositive of the matter.  However, the Tribunal acknowledges both the lack of specific authority on this question, and the potential uncertainty generated by previous authority applying the previous Tribunal and statutory framework that made analogue decisions. It has therefore separately and independently considered whether the applicant is a refugee without reference to the exclusion provision to ensure the applicant is provided a full entitlement to merits review given the uncertainty as to whether he may be excluded from such review by an untested interpretation of the Act. 

7. The applicant did not expressly argue that he would be persecuted on convention grounds in either his original or review applications. That is, he did not assert that he fears harm because of his race, religion, nationality, opinion or particular social group. The Tribunal does not identify any compelling evidence that the claim is cognisable on any of the first four convention grounds. The Tribunal considers that the applicant’s claims may be read to imply that he is a member of a particular social group: namely “former gang members or criminals” as a distinct class to the rest of Malaysian society. To reiterate the findings above, the Tribunal does not accept the applicant’s claims that he might face harm from other gang members. 

100.   To the extent that the applicant’s claims may be interpreted to suggest that he is a member of a particular social group facing discriminatory treatment from Malaysian authorities the Tribunal does not accept such a classification. The Convention was not intended to protect persons from legitimate prosecution or punishment for ordinary criminal acts. Regardless of whether Serious Crime Exclusion applies, the existence of Article 1F of the Convention, which is incorporated into s 5J(1) of the Act, reveals a statutory intention that refugee status is not intended to be a shield for fugitives from justice under laws of general application.[46] The Tribunal finds that the applicant’s asserted social group (as a former gang member who may be prosecuted) is not a cognisable “particular social group” under the Convention. Even if it were, the harm he fears is not inflicted because of group membership; rather, any attention from authorities would be because of his criminal conduct. As Brennan CJ explained in Applicant A v MIEA, the Convention “excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of ‘refugee’”.[47]

[46] Minister for Immigration and Multicultural Affairs v Israelian (2001) 206 CLR 323 [97]( McHugh, Gummow and Hayne JJ).

[47] Applicant A v MIEA (1997) 190 CLR 225. 233 (Brennan CJ).

101.   The Malaysian authorities’ interest in and pursuit of [Gang name 1] members is, on the evidence, part of a broad law-and-order effort against organised crime, not an attempt to persecute individuals for their religion, ethnicity, or other protected attribute. Any harm he fears (arrest, prosecution, imprisonment) is a direct consequence of his own criminal acts (assault, extortion, etc.), which are offences under Malaysia’s general criminal law. Such law is non-discriminatory on its face and in its application – it applies to anyone who commits the proscribed acts. There is no suggestion that the laws against assault, extortion or weapons offences are a mere pretext to persecute the applicant or any other person based on a Convention characteristic, including their membership of a particular ethnic or social group. On the contrary, the object of these laws – protecting the public from violence and crime – is a legitimate state purpose. Enforcement of those laws, even rigorously, is within the sovereign rights of Malaysia and does not amount to persecution in the Convention sense.

102.   The Tribunal finds that the harm the applicant fears in Malaysia does not constitute persecution for a Convention reason. Nor does the conduct complained of that gives rise to the asserted fear reveal a convention motive. Absent a Convention nexus, and having reviewed all the objective, credible evidence before it, the Tribunal finds the applicant is not a refugee for the purposes of s 36(2)(a) of the Act.

Does the applicant satisfy the complementary protection criterion for protection?

103.   As with the refugee criterion, the Tribunal has considered whether the applicant satisfies the criterion for complementary protection separately and independently from the question of whether the applicant is excluded on the basis of s36(2C)(a)(ii) (the relevant serious crime exclusion provision). If it is the case that the Tribunal must address s 36(2C)(a)(ii) in the present circumstances, then its findings, set out above, are determinative of complementary protection. If that is not the case the Tribunal turns to whether the applicant faces a real risk of significant harm as a foreseeable consequence of returning to Malaysia pursuant to s 36(2)(aa) of the Act.

104.   The Tribunal reiterates the following findings of fact. Firstly, it is satisfied that the applicant may be a person of interest if authorities become, or are already, aware of him. Secondly it is not satisfied that the applicant is a person of interest to authorities on the evidence before it; that is, there is no objective evidence that authorities know of his gang associations or criminal conduct and that he is actively being sought or pursued for those reasons. The Tribunal is not satisfied there is anything other than a remote possibility the authorities would become aware of these things now or in the reasonably foreseeable future. The Tribunal is also not satisfied that the applicant is at any genuine risk of retribution or other harm from gangs or other non-state actors.  As such, the findings of fact leave a narrow bandwidth of risk that is objectively and reasonably possible, namely the potential that he is arrested, charged or detained because of his historic gang activity. That may occur if, and only if, changed circumstances serve to bring these things to the attention of police. That might happen, for instance, if an investigation into a third party reveals his own participation in serious crimes in the past.  

105.   While the applicant may have a general anxiety about being arrested if he were returned to Malaysia, that is insufficient to meet the real-risk test in s 36(2A). Lawful detention or imprisonment resulting from criminal proceedings is not “significant harm,” unless it is accompanied by treatment that is cruel, inhuman or degrading treatment or punishment. The applicant provided no objective evidence that he would be so treated by authorities, but rather he sought to argue that he would not be able to live in peace, would be “chased”, arrested and gaoled for an indefinite time. The Tribunal is not satisfied that such treatment falls within the high threshold of significant harm required to attract complementary protection under the Act. 

106.   Country information supports the view that Malaysia’s efforts against gangs involve arrest and prosecution under the law, including use of special detention powers, and that detainees have reported abuse while in custody.[48] However, the information also indicates that those arrested on organised crime charges are subject to lawful prosecution and judicial oversight and that many have either been released or had their charges downgraded.[49]  There is no reliable evidence before the Tribunal to indicate that, if the applicant were arrested, he would be singled out as a particular target of intentional maltreatment in custody. At most the evidence suggests that he might be identified by incident of other lawful investigations as someone who committed crimes in the past. In the circumstances the Tribunal is not satisfied that the applicant would be someone who Malaysian authorities have a reason for, nor intend to, subject to severe pain or suffering.[50]

107.   The Tribunal is satisfied that the applicant’s profile does not suggest a targeted risk of torture. There is no suggestion in DFAT country information that returnees like the applicant are at risk of being secretly eliminated or tortured as state policy.  Nor did the applicant argue that he would be subject to the death penalty on return. Malaysia has recently reformed its laws to eliminate mandatory death sentences for many crimes and to allow sentence review and has maintained a moratorium on executions since 2018.[51] Regardless, none of the crimes admitted to by the applicant appear to fall within the category of offences for which the death penalty applies. The Tribunal has considered the possibility of corporal punishment (caning), which may qualify as significant harm. However, based on the evidence before it, the Tribunal is not convinced this will eventuate. Relatedly, any risk of ill-treatment in custody is a general one that exists for many detainees in Malaysia and is not shown to specifically target him. The Tribunal is not satisfied that the applicant faces a necessary and foreseeable danger of being subjected to torture or serious physical abuse if he were to come to the attention of police.

108.   The worst foreseeable legal outcome for the applicant – imprisonment – while potentially harsh (Malaysian prisons are known to be challenging environments), would not be inflicted with the intention of causing him suffering beyond lawful punishment.[52] As already noted, this remains speculative and does not give rise to a real risk. The applicant has not shown that authorities would intentionally make his punishment disproportionately cruel. If anything, they would be punishing him for his crimes, not for the purpose of causing him gratuitous pain.

109.   For the above reasons, the applicant does not meet the complementary protection criterion in s 36(2)(aa). In the Tribunal’s assessment, any harm he faces is the predictable consequence of lawful arrest and punishment, not harm of the significant threshold that the Act protects against. The threshold of “significant harm” is not met.

[48] DFAT Country Information Report – Malaysia, (June 2024), [4.12].

[49] Ibid.

[50] SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

[51] DFAT, note 48, [4.6].

[52] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 367 (Kiefel CJ, Nettle and Gordon JJ).

DECISION

110.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Nor is the Tribunal  satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

112.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Date of hearing:       25 February 2025.

Representative:        N/A.

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

Department of International Protection, Geneva, 4 September 2003, 14.